Environmentalism & Development Series, Part Four: Development in the Dark – Private v. Public Land Development. Our final entry into our development series will ponder an interesting dilemma inherent in the American system of private property rights and public oversight of things within the Public Trust. You can read Part Three, The Aspirations and Impacts of Green Development by clicking here.
There is an amazing difference between the levels of oversight and accountability that occur between private developments and public developments or private developments that occur on public lands.
Why does the difference matter? When public dollars or lands are used to build, fund, or site projects, a host of oversight and transparency laws come into play that do not exist for private developments. Even a series of labor laws to protect workers are triggered when public projects are being developed. This article will focus on the transparency and accountability issues public developments must adhere to that private developments do not.
The United States is home to vast tracts of public land in the western half of the country, a product of the history in which the country was founded and organized. These public lands and monuments have become a treasure not just of the American people, but of the world, and a host of laws has been put in place to protect these places in the public interests. However, private and public parties have always maintained an interest in developing these areas. From dams and water resources to fossil fuel extraction and mining, the desire to develop areas of public lands has existed since Europeans landed on North American shores. Opposition to development is usually premised on the development’s impact on local ecosystems in addition to the broader environmental and human impacts. Some of these impacts are self-evident from the proposed development, such as the impacts of a new coal-fire power plant. Others are not as evident.
The laws put in place to protect our public lands create significant transparency as well as a relatively strong system of checks and balances to protect these lands from reckless development if our leaders choose to do try. Many laws environmental protection laws have “citizen suit provisions,” which allow citizens to use the courts to enforce these laws when the government falls short.
A sampling of Environmental Statutes
- Clean Air Act*
- Clean Water Act*
- Comprehensive Environmental Response Compensation and Liability Act*
- Endangered Species Act*
- National Environmental Policy Act*
- Surface Mining Control and Reclamation Act*
- Safe Drinking Water Act*
- Multiple Use Sustained Yield Act
- Nation Forest Management Act
- Nation Historic Preservation Act
- Native American Graves Repatriation Act
- Resource Conservation and Recovery Act*
- Wilderness Act
- Freedom of Information Act*
*citizen suit provisions
However, one of the surprisingly powerful tools of accountability is public access to these sites. For the most part, public lands have open access to the public and individuals can investigate sites of proposed developments for themselves. This is not the case with private property.
Take for example a site of a planned unit development of medium–to–high density homes in a heavily forested area. The presence of nests of migrating endangered raptors or other birds may be unknown on private property. The developer may not allow access to conservation groups to determine the status or presence of endangered species in the area and may hire a private consultant to make the determination if they are required to by law. The statements made by the developer and the hired consultant, which states that there are no raptors in the area, are facially questionable as both parties have a vested financial interest in the ongoing success and development of the property. This is not to say that all developers are dishonest; however, it is undeniable that the draw of the dollar is powerful. Knowing the benefits of developing in the dark, some states have tried pushing through blatantly unconstitutional laws to protect the financial interests of private parties’ destruction of public lands and resources.
Environmental transparency is almost nonexistent for private property. While vast tracts of public lands exist in the west, so do vast tracts of private property, frequently owned by a single person. There are many massive old ranching and farmlands acquired during homesteading or through mineral claims when the federal government was giving away or heavily subsidizing land. These tracts are being passed down or consolidated by corporate interests where minerals or desirable residential building sites exist.
These lands often border or are even entirely contained within public lands. They may and oftentimes do contain ecologically sensitive areas, river systems, and can be critical habitat for endangered species. These areas have no public access outside of landowner permission, which makes assessment and protection of these areas very difficult, and developers will threaten prosecution and suits for trespass.
Since there is no right of access or documentation for private land, there effectively is no mechanism available to measure the damage, severely limiting oversight and accountability. Many provisions still apply to private lands when their development would kill endangered species or destroy culturally significant sites or sensitive ecosystems, but since it is all but impossible to prove without access to the site, development in the dark is an overwhelming tool private developers can wield to destroy our environment. This is not to say that all private developments are hopeless. Citizens can still monitor sites from a distance; reach out to corporate management and local government to make their voices heard; and utilize the power of local ordinances, open government law, land use law to monitor development in their community.